Hearing of the House Committee on the Judiciary - Warrantless Surveillance and the Foreign Intelligence Surveillance Act
Statement
HEARING OF THE HOUSE COMMITTEE ON THE JUDICIARY
SUBJECT: WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
CHAIRED BY: REP. JOHN CONYERS (D-MI)
WITNESSES: BOB BARR, FORMER U.S. HOUSE REP.; SUZANNE SPAULDING, FORMER CIA ASSISTANT GENERAL COUNSEL; PROFESSOR ROBERT TURNER, UNIVERSITY OF VIRGINIA LAW SCHOOL; MORT HALPERIN, OPEN SOCIETY INSTITUTE
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REP. HANK JOHNSON (D-GA): I thank you, Mr. Chairman.
Mr. Chairman, the purpose of my request is to simply acknowledge the presence of my Georgia colleague and the bar of Georgia, Mr. Bob Barr, a man who -- we've not agreed on all of our political issues but I certainly deeply respect the patriotism that he has displayed throughout his career both as a U.S. attorney -- where he prosecuted public corruption cases in a bipartisan way as well as was tough on other crime -- and also as a congressman and then his post- congressional career, where he has been an eloquent spokesperson for our adherence to constitutional principles as we proceed in a more dangerous existence on this planet.
So I just wanted to acknowledge your great work and say that I appreciate the fact that you are a lawyer from Georgia and you continue to do great work, so thank you very much.
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REP. HANK JOHNSON (D-GA): Thank you, Mr. Chairman.
I would note for the record that my kids would from time to time place in an e-mail the fact that new CD by Jay-Z is, quote, "blowing up." And so I guess that they would trigger a review of their e- mails.
But I'm concerned about the interview that Director of National Intelligence Mike McConnell gave to The El Paso Times. And you alluded to that interview, Congressman Barr, and you mentioned that Mr. McConnell stated that if we continued to debate this issue in Congress, then Americans are going to die. And you were attacked for -- in this hearing -- for alluding to that statement. And I have a copy of the transcript of the interview with Mr. McConnell, and I'll just read that part for the record.
It says -- the question says, "So you're saying that the reporting and the debate in Congress means that some Americans are going to die?" The answer: "That's what I mean, because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it's the democratic process and sunshine's a good thing."
And so he definitely said that if Congress continues to discuss this, then Americans are going to die.
And Ms. Spaulding, I want to ask you as a former CIA official and former executive director of a national commission on terrorism, can you tell us what your concerns would be about that statement that Mr. McConnell made in the context of the passage of this law that we're talking about today, the amendment to FISA?
MS. SPAULDING: Yeah. I think it is a most unfortunate comment on the part of Director McConnell. And we've discussed previously today the importance -- both to our, not just to our civil liberties but to our national security -- of having an open and robust and informed public discussion and debate.
The thing that I think is so tragic about comments like that of Director McConnell is that it does seem to reflect a fundamental lack of faith in our -- in the strength of our democratic system.
And I think it's important to remember -- to always keep in mind that this system of checks and balances was not created by a bunch of fuzzy-headed liberals. This was a system that was created by hardnosed pragmatists who had just fought a war and faced a time of great peril.
REP. JOHNSON: These are the same --
MS. SPAULDING: This was the way to keep the company strong.
REP. JOHNSON: -- same Founding Fathers that have been cited repeatedly by Professor Turner.
And Professor Turner, you would agree that our Constitution sets up a separation of powers between the three branches of government -- president, legislative and judicial -- correct? You would agree?
MR. TURNER: I would agree, but some of those powers are not checked. That is to say --
REP. JOHNSON: Well, no. No. You would agree --
MR. TURNER: -- the pardon power, for example, is unchecked.
REP. JOHNSON: Listen to my question, and you answered. You agreed that we set up a separation of powers.
MR. TURNER: With some checks.
REP. JOHNSON: And then one of the things that makes that separation so important is because the three branches are co-equal, are they not?
MR. TURNER: Well, they're co-equal but they also have their own powers --
REP. JOHNSON: Thank you.
MR. TURNER: -- that are independent of the others.
REP. JOHNSON: That's true. They're separate.
MR. TURNER: Yeah.
REP. JOHNSON: Separation of powers, co-equal.
MR. TURNER: Right.
REP. JOHNSON: And the thing that gives substance to this co- equality is the concept of checks and balances. Would you agree to that, Congressman Barr?
MR. BARR: I would certainly agree with that.
REP. JOHNSON: And Congressman Barr, how can there be a check and balance on the executive branch if there's no judicial oversight or legislative input into an executive function?
MR. BARR: It creates a nullity. There is none.
REP. JOHNSON: What's your response to that, Professor Turner?
MR. TURNER: It's very easy, and I document it briefly in my testimony. In the area of foreign affairs, the Founding Fathers, the people we're talking about --
REP. JOHNSON: You're saying that there is no check and balance in foreign affairs?
MR. TURNER: Well, to give you one example, three days after Jefferson wrote his memo --
REP. JOHNSON: Is that true or is that false -- no check and balance --
MR. TURNER: There are some checks.
REP. JOHNSON: -- in the president's conduct in foreign affairs?
MR. TURNER: Yeah. In Jefferson's memo, he said subject to the negatives given to the Senate. For example, the Senate can block an ambassadorial nominee. The Senate can block a treaty. The House, for example, in the --
REP. JOHNSON: Yeah, we understand that. But we --
MR. TURNER: The House clearly can control that.
REP. JOHNSON: I understand.
MR. TURNER: Yeah.
REP. JOHNSON: And you've kind of graced us with a historical perspective as we have gone through this hearing and I appreciate that, but my time is --
MR. TURNER: Okay.
REP. JOHNSON: -- is running.
I did want to ask Mr. Barr -- Congressman -- if two Americans in the United States each sent -- well, let me ask this question: If there was an American solider in Iraq that sent an e-mail to his girlfriend here in the United States, then under this new FISA act, that communication can be monitored because it concerns a person who is outside the United States. Is that correct?
MR. BARR: That is correct.
REP. JOHNSON: And there's no need for a warrant?
MR. BARR: That is correct, too.
REP. JOHNSON: No judicial oversight is called for?
MR. BARR: Correct.
REP. JOHNSON: And that can be for a student who may be over in England somewhere and communicates back with a phone call to their parents. That phone call can be monitored.
MR. BARR: That is correct.
REP. JOHNSON: A doctor who's traveling overseas may call a patient here in the U.S. and that phone call can be monitored.
MR. BARR: That is correct.
REP. JOHNSON: That e-mail correspondence can be monitored.
MR. BARR: Correct.
REP. JOHNSON: And, Ms. Spaulding and Mr. Halperin, isn't it a fact that this new act would allow for the physical search of premises inside of the United States if it concerns a person located outside the United States?
MS. SPAULDING: There are several criteria for -- this would be under 105B, and it has to concern a person outside the United States. As I read it, it has to require the assistance of someone to gain access to a communication, which I can only assume the government meant and was focused on electronic surveillance, but the language is unfortunate because it, as I've pointed out in my testimony --
REP. JOHNSON: Overly broad.
MS. SPAULDING: -- it's much, much broader.
REP. JOHNSON: Yes.
MS. SPAULDING: But yes, assuming that it fit that fact pattern, the government would be able to -- because of the "notwithstanding any other law" -- use this authority to conduct a physical search.
REP. JOHNSON: Thank you. I was --
MR. HALPERIN: Can I just -- Mr. Johnson, can I just -- I don't think that's correct because the (division ?) also says that it cannot be electronic surveillance, and I think the interception of the e-mail would be electronic surveillance.
But I think the important point is that this statute uses a whole set of new words. The notwithstanding language doesn't appear any place else. The directed at rather than targeted at doesn't appear anyplace else. The concerning a person overseas doesn't appear anywhere else in the statute. And nobody has any idea what those words were intended to mean or what a court will interpret them to mean or what the attorney general now thinks they mean. And that's not a way to legislate when it involves the constitutional rights of Americans.
REP. JOHNSON: Well, I agree. And I have confidence that under the oversight of this chairman of this committee we will consider legislation to amend this act and to correct these deficiencies, and I want to applaud the chairman for holding this hearing today. Thank you.
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